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Hawaii Background Check Laws

Capital Honolulu Population 1,428,557
Largest city Island of Oahu
Area 10,931 sq mi
Criminal rate 31 crimes /10,000 people Time Zone UTC −10

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Hawaii Drug Screen Compliance

Hawaii Employment Screening laws

Employers that are either located in Hawaii or hiring Hawaii residents must abide by the Federal FCRA, and applicable Hawaii state employment laws.

This page was created to provide a simple explanation of what an end-user of a background screening report (also known as consumer report) can use in order to be in compliance with Hawaii state laws. This page also contains steps an end-user must take to stay in compliance with Hawaii state laws.

Please keep in mind that the EEOC must always be taken into consideration when a hiring decision is to be made. The EEOC has provided guidance on how employers can use criminal records during the hiring process. This regulation was issued on April 25, 2012. The EEOC requires employers to individually review each applicant or employee that may be disqualified due to a criminal record. This also follows the regulations set forth by the Americans with Disabilities Act (ADA). Additionally, the EEOC wants to undertake an adverse action process similar to that of the FCRA. They want to add a pre-adverse action process of their own. Although employers already have an adverse action process that is specific to information contained in consumer reports, the EEOC's adverse action process may be different.

The information that is provided on this page does not discuss requirements under the EEOC nor does it explain how to use criminal records that fall under the regulation of the EEOC. It is suggested that compliance with the EEOC be discussed with legal counsel.

For more detailed information on Hawaii state laws, please consult your legal counsel.

Background Check Law Ban the Box Law Court Fee

Employment Background Check Laws In Hawaii:

Hawaii Revised Statutes 378-2.5: Employer inquiries into conviction record.

§378-2.5 Employer inquiries into conviction record. (a) Subject to subsection (b), an employer may inquire about and consider an individual’s criminal conviction record concerning hiring, termination, or the terms, conditions, or privileges of employment; provided that the conviction record bears a rational relationship to the duties and responsibilities of the position.

(b) Inquiry into and consideration of conviction records for prospective employees shall take place only after the prospective employee has received a conditional offer of employment which may be withdrawn if the prospective employee has a conviction record that bears a rational relationship to the duties and responsibilities of the position.

(c) For purposes of this section, “conviction” means an adjudication by a court of competent jurisdiction that the defendant committed a crime, not including final judgments required to be confidential pursuant to section 571-84; provided that the employer may consider the employee’s conviction record falling within a period that shall not exceed the most recent ten years, excluding periods of incarceration. If the employee or prospective employee claims that the period of incarceration was less than what is shown on the employee’s or prospective employee’s conviction record, an employer shall provide the employee or prospective employee with an opportunity to present documentary evidence of a date of release to establish a period of incarceration that is shorter than the sentence imposed for the employee’s or prospective employee’s conviction.

(d) Notwithstanding subsections (b) and (c), the requirement that inquiry into and consideration of a prospective employee’s conviction record may take place only after the individual has received a conditional job offer, and the limitation to the most recent ten-year period, excluding the period of incarceration, shall not apply to employers who are expressly permitted to inquire into an individual’s criminal history for employment purposes pursuant to any federal or state law other than subsection (a), including:

(1) The State or any of its branches, political subdivisions, or agencies pursuant to sections 78-2.7 and 831-3.1;

(2) The department of education pursuant to section 302A-601.5;

(3) The department of health with respect to employees, providers, or subcontractors in positions that place them in direct contact with clients when providing non-witnessed direct mental health services pursuant to section 321-171.5;

(4) The judiciary pursuant to section 571-34;

(5) The counties pursuant to section 846-2.7;

(6) Armed security services pursuant to section 261-17(b);

(7) Providers of a developmental disabilities domiciliary home pursuant to section 333F-22;

(8) Private schools pursuant to sections 302C-1 and 378-3(8);

(9) Financial institutions in which deposits are insured by a federal agency having jurisdiction over the financial institution pursuant to section 378-3(9);

(10) Detective agencies and security guard agencies pursuant to sections 463-6(b) and 463-8(b);

(11) Employers in the business of insurance pursuant to section 431:2-201.3;

(12) Employers of individuals or supervisors of individuals responsible for screening passengers or property under 49 U.S.C. §44901 or individuals with unescorted access to an aircraft of an air carrier or foreign carrier or in a secured area of an airport in the United States pursuant to 49 U.S.C. §44936(a);

(13) The department of human services pursuant to sections 346-97 and 352-5.5;

(14) The public library system pursuant to section 302A-601.5;

(15) The department of public safety pursuant to section 353C-5;

(16) The board of directors of a cooperative housing corporation or the manager of a cooperative housing project pursuant to section 421I-12;

(17) The board of directors of an association of owners under chapter 514A or 514B, or the manager of a condominium project pursuant to section 514A-82.1 or 514B-133; and

(18) The department of health pursuant to section 321-15.2. [L 1998, c 175, §1; am L 2003, c 95, §12; am L 2004, c 79, §5 and c 164, §10; am L 2005, c 93, §7; am L 2006, c 220, §4; am L 2008, c 28, §7]

Ninja's summary

An employer can only obtain criminal history on a potential candidate after they have issued that applicant a conditional offer of employment. A background screening cannot be started unless a conditional offer of employment has been made.

In the event that criminal conviction records exist, an employer may only consider an applicant’s criminal history for employment purposes if the criminal conviction has a rational relationship to the duties and responsibilities of the position.

Criminal conviction records beyond 10 years old, excluding the period of incarceration, can NOT be used in making employment decisions.

Hawaii Revised Statutes 378-2.7: Employer inquiries into and consideration of credit history or credit report.

(a) Notwithstanding section [378-2(a)(8)]:

(1) Inquiry into and consideration of a prospective employee’s credit history or credit report may take place only after the prospective employee has received a conditional offer of employment, which may be withdrawn if information in the credit history or credit report is directly related to a bona fide occupational qualification;

(2) The prohibition against an employer’s refusal to hire or employ, barring or terminating from employment, or otherwise discriminating on the basis of credit history shall not apply to employers who are expressly permitted or required to inquire into an individual’s credit history for employment purposes pursuant to any federal or state law;

(3) The prohibition against an employer’s refusal to hire or employ, barring or terminating from employment, or otherwise discriminating on the basis of credit history shall not apply to managerial or supervisory employees; and

(4) The prohibition against an employer’s refusal to hire or employ, barring or terminating from employment, or otherwise discriminating on the basis of credit history shall not apply to employers that are financial institutions in which deposits are insured by a federal agency having jurisdiction over the financial institution.

(b) For the purposes of this section:

“Managerial employee” means an individual who formulates and effectuates management policies by expressing and making operative the decisions of the individual’s employer.

“Supervisory employee” means an individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibility to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment. [L Sp 2009, c 1, §1]

Ninja's summary

An employer can only obtain a credit report on a potential candidate after they have issued that applicant a conditional offer of employment. Additionally, an employer may NOT obtain or use an applicant’s credit report or credit history in making a hiring decision unless there is a significant relationship between the credit history and the position’s duties and qualifications.

An employer can obtain a credit report after a conditional offer of employment is made only if:

  • (1) State or Federal Law authorizes the employer to obtain a credit report; or
  • (2) The position is managerial or supervisory where employees use independent judgment to perform their job; or
  • (3) The position is for a federally insured financial institution.

The offer of employment may be revoked upon review of the credit report only if there is a significant relationship between credit history and the position’s duties and qualifications.

Update: Feb 2018

Fair Credit Reporting Act (FCRA):

The Fair Credit Reporting Act (FCRA) is a set of federal guidelines that helps regulate hiring practices. The FCRA was created to ensure privacy, accuracy, and fairness of consumer information. The FCRA accomplishes this by having a set standard for collecting, disseminating, and using consumer information.

Employers obtaining consumer reports for background screening purposes must follow specific procedures. For example, employers must disclose to the candidate what the background screening is, what information it includes, and how they intend to use it. They must obtain the written consent of the candidate before obtaining a background screening. They may not misuse the information contained in the background screening. There are also strict procedures an employer must follow should they decide not to hire a potential candidate based on the information in the background screening.

The purpose of the FCRA is to help protect employers, employees, and potential job candidates.

Disclaimer

This material is time sensitive. Contact us for updates. This information is subject to frequent change through legislative and court action.

All materials in this page and accompanying information are for general educational purposes and not intended to provide legal, scientific or medical advice. Consult with an appropriate professional to address specific issues.

Hawaii Ban the Box

Employers in Hawaii can only obtain criminal history information on an applicant after a conditional offer of employment has been made. This standard applies to ALL employers in Hawaii.


Update: Feb 2018

Disclaimer

This material is time sensitive. Contact us for updates. This information is subject to frequent change through legislative and court action.

All materials in this page and accompanying information are for general educational purposes and not intended to provide legal, scientific or medical advice. Consult with an appropriate professional to address specific issues.

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